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2004 DIGILAW 1432 (AP)

Shaik Abdul Wall v. Shaik Shakeel

2004-11-26

T.CH.SURYA RAO

body2004
T. SURYA RAO, J. ( 1 ) THE petitioner seeks cancellation of bail. The Respondents 1 and 2 herein are A. 1 and A. 2 in Crime No. 259 of 2004 of Musheerabad Police Station. Hyderabad. The brother of the petitioner, by name Mohd, Khaja was allegedly murdered by Respondents 1 and 2 herein on 27. 7. 2004. ( 2 ) THE case of the prosecution was that the deceased was doing business in plywood under the name and style of m. M. Traders. One month earlier to the incident in this case he started business of welding by the side of his plywood shop. Respondents 1 and 2 who were also having welding shop started threatening the deceased and his partner, by name, Satiar asking them to close the business as their business was affected. They even asked the house owner of the deceased to get him vacated. Having entertained the motive in their minds, it is said that on 20. 7. 2004 at about 2. 00 p. m. , while the deceased was sitting at his shop, Respondents 1 and 2 come there along with petrol tin. While the second respondent caught hold of the deceased tightly, the first respondent poured petrol upon him and set fire with a matchstick. The nephew of the deceased, by name, Mohd. Anwar when tried to rescue but even after setting fire, the respondents poured petrol on the deceased, to the process, the second respondent also received burn injuries. The deceased sustained 90% burn injuries and died on 24. 7. 2004 in the hospital due to shock due to burn injuries. ( 3 ) THE Respondents 1 and 2 were arrested in the month of July, 2004. They were directed to be released by an order 20. 9. 2004 passed in Crl. M. P. No. 2531 of 2004 by the learned I Additional Metropolitan sessions Judge, Hyderabad. ( 4 ) ON the premise that material part of the investigation was completed and the respondents I and 2 had been in judicial custdy for the last 60 days by then and as the custodial interrogation of the accused was no more required, the learned Judge was inclined to grant bail to the Respondents 1 and 2. ( 4 ) ON the premise that material part of the investigation was completed and the respondents I and 2 had been in judicial custdy for the last 60 days by then and as the custodial interrogation of the accused was no more required, the learned Judge was inclined to grant bail to the Respondents 1 and 2. While granting bail, he imposed a condition that the Respondents 1 and 2 should appear before the concerned Station House officer on every Monday and Wednesday between 9. 00 a. m. , and 10. 00 a. m. , until further orders. ( 5 ) IT is the contention of the learned counsel appearing for the petitioner that there has been no safety for the witnesses and the family members of the deceased since the Respondents 1 and 2 are dangerous persons and when there is sufficient evidence in support of the case of the prosecution, bail ought not to have been granted to them. Before adverting to the contentions of the learned Counsel for the petitioner it is expedient to notice the law on the point at the threshold. ( 6 ) IN State of Maharashtra v. Sitaram popat Vetal, 2004 (2) ALD (Crl.) 768 (SC) = 2004 SCC (Crl.) 1971, the Apex Court held that three factors need be considered while dealing with an application for bail, namely, (i) the nature of accusation and the seventy of punishment in case of conviction and the nature of supporting evidence: (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant: and (Hi) prime facie satisfaction of the Court in support of the charge. It was held that any order which is devoid of the said reasons suffers from non-application of mind. At the same time, the Supreme Court was of the view that giving reasons while granting bail is different from discussing merits or demerits. Therefore, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case shall not be undertaken. However, there is every need to undertake in the order, reasons fir prime facie concluding why bail is being granted. Therefore, at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case shall not be undertaken. However, there is every need to undertake in the order, reasons fir prime facie concluding why bail is being granted. ( 7 ) IN Chaman Lal v. State of U. P. and another, 2004 (2) ALD (Crl.) 599 (SC) = 2004 SCC (Crl.) 1974, the Apex Court again held that at the time of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case shall not be undertaken but there is every need to undertake in the order reasons for prima facie concluding why bail is being granted, particularly where an accused has been charged of having committed a serious offence. The Court while dealing with an application for bail is required to exercise its discretion in a judicious manner and not as a matter of course. The Apex Court reiterated three factors to be considered for granting a bail, as held in Sitaram Popat Vetal s case (supra ). ( 8 ) IN Puran v. Rambilas, 2001 (2) ald (Crl,) 30 (SC) = 2001 AIR SCW 1935, the Apex Court held that at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. Giving reasons for granting bail is different from discussing merits and demerits. The Apex Court in Paras 9 and 12 dealt about the grounds for cancellation of bail. It reads thus:"generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. However, these instances are merely illustrative and not exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impart on the society. Such an order would be against principles of law. Interest of justice would also require that such perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impart on the society. Therefore, an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected. "[emphasis is mine] ( 9 ) IN Prahlad Singh Bhati v. N. C. T. , delhi, 2001 (1) ALD (Crl.) 647 (SC) = 2001 air SCW 1263 = (2001) 4 SCC 280 , in para 8 the Apex Court held thus:"the jurisdiction to grant bail has to be exercised on the basis of well-settled principles having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the Legislature has used the words "reasonable grounds for believing" instead of "the evidence" which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. "[emphasis is mine] ( 10 ) IN Ram Govind Upadhyay v. Sudarshan Singh, 2002 (1) ALD (Crl.) 706 (SC) = (2002) 3 SCC 598 , the Apex Court following its earlier judgment in Prahlad singh Bhati s case held in Para 3 and 4 thus:"3. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Grant of bail though being a discretionary order - but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the Court and facts, however, do a/ways vary from case to case. While placement of the accused in the society, though may he considered but that by itself cannot be a guiding factor in the matter of grant of bail and the same should and ought always to be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail - more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter. 4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being: (a) Whilee granting bail the Court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations. (b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. fc) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the Court in support of the charge. (d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. " [emphasis is mine]the Apex Court again has dealt in Para 8 and 9 the considerations for cancellation of bail. They may be excerpted hereunder thus:"8. " [emphasis is mine]the Apex Court again has dealt in Para 8 and 9 the considerations for cancellation of bail. They may be excerpted hereunder thus:"8. While it is true that availability of overwhelming circumstances is necessary for an order as regards the cancellation of a bail order, the basic criterion, however, being interference or even an attempt to interfere with the due course of administration of justice and/or any abuse of the indulgence/ privilege granted to the accused. The contextual facts depict, and as noticed hereinbefore, that the incident occurred at the time when the election was going on and the murder was said to have been committed in broad daylight by reason of interference of the deceased when the informant was prohibited from casting his vote. The situation is rather grave and having regard to the same, the High Court on 29-8-2000 refused the application for bail. 9. Undoubtedly, considerations applicable to the grant of bail and considerations for cancellation of such an order of bail are independent and do not overlap each other, but in the event of non-consideration of considerations relevant for the purpose of grant of bail and in the event an earlier order of rejection available on the records, it is a duty incumbent on the High Court to explicitly state the reasons as to why the sudden departure in the order of grant as against the rejection just about a month ago. The subsequent FIR is on record and incorporated therein are the charges under sections 323 and 504 IPC in which the charge-sheet have already been issued - the court ought to take note of the facts on record rather than ignoring them. In any event, the discretion to be used shall always have to be strictly in accordance with law and not de hors the same. The High Court thought it fit not to record any reason, far less any cogent reason, as to why there should be a departure when in fact such a petition was dismissed earlier not very long ago. The High Court thought it fit not to record any reason, far less any cogent reason, as to why there should be a departure when in fact such a petition was dismissed earlier not very long ago. The consideration of the period of one year spent in jail cannot in our view be a relevant consideration in the matter of grant of bail, more so by reason of the fact that the offence charged is that of murder under section 302 1pc having the punishment of death or life imprisonment - it is a heinous crime against the society and as such the court ought to be rather circumspect and cautious in its approach in a matter which stands out to be a social crime of a very serious nature. " [emphasis is mine] ( 11 ) FROM the above, it is obvious that considerations germane for grant of bail and considerations for cancellation of such an order of bail are independent and do not overlap each other. Grant of bail is undoubtedly a discretionary order but such a discretion shall have to be exercised in a judicious manner and not as a matter of course. The discretion shall have to be exercised on the basis of well-settled principles having regard to the contextual facts which vary from case to case. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case shall not be undertaken. However, there is every need to assign inter alia in the order reasons for prima facie concluding why bail is being granted. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case shall not be undertaken. However, there is every need to assign inter alia in the order reasons for prima facie concluding why bail is being granted. The considerations applicable for grant of bail are (1) the nature of accusations and the seventy of the punishment in case of conviction and the nature of supporting evidence; (2) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; (3) prima facie satisfaction of the Court in support of the charge; (4) the character, behaviour, means and standing of the accused; (5) circumstances which are peculiar to the accused; (6) reasonable possibility of securing the presence of the accused at the trial (7) the larger interests of the public or State and similar other considerations; (8) while placement of the accused in the society, though may be considered but that by itself cannot be a guiding factor in the matter of grant of bail; (9) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail. These are only illustrative and not exhaustive. Generally speaking the grounds for cancellation of bail broadly are (1) interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner; (2) ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons is against the principles of law and therefore interest of justice requires such perverse order be set aside and bail be cancelled; (3) an arbitrary and wrong exercise of discretion by the Trial Court has to be corrected. The basic criterion always shall be interference or an attempt to interfere with the due course of administration of justice/any abuse of the indulgence or privilege granted to the accused. ( 12 ) TURNING to the facts, the Court below exercised its discretion by directing the accused be released. The basic criterion always shall be interference or an attempt to interfere with the due course of administration of justice/any abuse of the indulgence or privilege granted to the accused. ( 12 ) TURNING to the facts, the Court below exercised its discretion by directing the accused be released. The reasons assigned in support thereof are that the material part of the investigation had been completed and that the custodial interrogation of the accused was no more required. Of course, regard has also been had to the fact that the accused have been in judicial custody for 60 days. At the same time to obviate the apprehension of the prosecution of any attempt to tamper with the evidence imposed a condition that the accused should appear before the concerned Station House Officer on every Monday and Wednesday between 9. 00 a. m. and 10. 00 a. m. , until further orders. The criterion considered by the Court below for grant of bail although fall short of the indicia laid down by the Apex Court are not discernible from the order. But, yet, it cannot be said that the exercise of discretion by the said Court is in any manner arbitrary and perverse. Undoubtedly, the larger interests of the public or State are not involved in the case inasmuch as the alleged perpetration of the crime is purely personal on the account of the motive suggested by the prosecution. There has been no whisper about any interference or attempt to interfere on the part of the accused with due course of administration of justice or any abuse of the concession granted to them in any manner, in the absence of any such allegation although it is said that the Court has ignored the material evidence available on record while granting bail in a murder crime without assigning cogent reasons notwithstanding the same since it cannot be said that the order is in any manner perverse, or an outcome of an arbitrary exercise of, discretion, the liberty granted to the accused, in my considered view, shall not be! automatically interfered with particularly in the absence of the main allegation of interference with due course of administration of justice. ( 13 ) FOR the foregoing reasons, the criminal petition fails and is dismissed.